A shift in the Court’s IFP policy?

Posted Mon, October 4th, 2010 12:07 pm by Kevin Russell

Buried in this morning's order list is an order that may be of special interest to members of the Supreme Court bar who represent indigent parties in the Court. The Court denied the motion for leave to proceed in forma pauperis (IFP) and for appointment of counsel in Sossamon v. Texas, No. 08-1438, a case being argued in November. The denial may signal a change in the Court's criteria for granting IFP status at the merits stage in some cases.

In general, the Court grants IFP status and appoints counsel on the merits for parties with limited income. The Court then pays for the cost of printing the party's merits briefs and covers some costs associated with appointed counsel's trip to Washington to argue the case. Ordinarily, if the lower courts granted a litigant IFP status, the Court would do so as well.

Today's denial seems to reflect a shift from that former practice, at least to some degree. I took notice of it because I filed the motion the Court denied. We represent Mr. Sossamon in association with the Stanford Supreme Court Litigation Clinic.

Until today, the Court had routinely granted IFP status to the Clinic's indigent clients and appointed Clinic instructors as counsel at the merits stage. I am fairly confident that the Court did not deny our motion because it concluded that this particular client was not indigent "“ the lower courts had granted our client (a prison inmate) IFP status and appointed him counsel in the court of appeals. I am also reasonably confident that I did not simply botch the motion "“ the motion is fairly pro forma, and the one in this case followed a template that the Clinic has successfully used in the past.

As a result, I believe that the Court has changed its policy and that the Clinic's involvement in the case was a critical factor. There seem to be two possible explanations.

First, the Court may have determined that parties represented by clinics (and, presumably, law firms or other similarly well-funded organizations) do not merit IFP status because their counsel are able (and presumably willing) to bear the costs the Court would otherwise pay. That would be a fairly radical shift in practice and could result in some difficult line-drawing problems "“ for example, will the Court apply that rule to public defender offices or less well-funded public interest organizations?

The second possibility would reflect a more modest change in practice (and, therefore, seems more likely to me). The Stanford Clinic, as a matter of practice, files its cert. petitions as "paid" cases "“ we pay the filing fee, have the petition printed in booklet form, and do not seek IFP status at the cert. stage. Our basic thinking is that IFP petitions tend to get buried in a sea of other, mostly meritless, pauper petitions. The Court may have decided that if a party is able, and indeed chooses, to forgo IFP status at the cert. stage, the Court will not entertain a request to switch status once the petition is granted.

Perhaps the Court will amend its rules to provide definitive guidance, but in the meantime, members of the bar can take whatever lessons they can from the Court's action today.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices met for their December 9 conference; Honeycutt v. United States.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.